Q & A – war crime?

This morning on Q & A: Human Rights lawyer Marianne Elliott worked for the UN in Afghanistan she joins us live. Did they commit a war crime?

Elliot is director of Action Station.


Statement from NZDF admitting there was a suspected civilian casualty after 2010 SAS raid in Afghanistan

Elliott: an ISAF assessment is not the same as an independent investigation. ISAF is a military assessment of a military operation.

She believes a new independent inquiry can be effective – the attacks took place in 2010.

Is the book politically motivated? Elliott says there has been a politically motivated cover up.

Corin Dann says that the politicians may not have been properly informed. Elliott says again the cover up is politically motivated.

It is very important any inquiry has credibility with the Afghan people affected.

“What the people wants is the truth”. Action Station have surveyed their community.

Was it a possible war crime? Is that an appropriate claim?

Elliott: Yes.

No intention to kill civilians – but that doesn’t  rule out carelessness or error of judgement – errors of judgement will frequently happen in wars.

She feels strongly that “our troops deserve an inquiry”.

 

More depth to ‘Hit & Run’ reports now

Some pundits and journalists were excitedly demanding immediate action after a quick look at Nicky Hager’s and Jon Stephenson’s ‘Hit & Run’, launched on Tuesday evening.

There are far better reports coming out now that people interested in looking at the issue in more depth are publishing their views.

More investigation from David Fisher: Exclusive interview: NZSAS says civilians were killed in fatal raid, including two by Kiwi sniper fire

What he has found out supports some of the book’s claims but disagrees with some, in particular the claim that it was a revenge raid.

But the soldier’s account also conflicted with claims in the book that the NZSAS were motivated by “revenge” over the death of O’Donnell.

He said the NZSAS soldiers would have been “angry” over the death but “revenge” had no part to play in how they did their jobs.

The soldier said: “SAS boys are a different breed. Everything is a lot more calculated.”

Rather than “revenge”, the Herald was told by the former Governor of the neighbouring province, the raid was to target insurgents who threatened the New Zealand base at Bamyan, about 50km away.

So those who claim that Hager never gets anything wrong may want to reassess that view.

Toby Manhire: Books damning claims demand inquiry

Hager and his co-author, Jon Stephenson, have stressed both these points.

The then prime minister did sign off the raid, which apparently killed six civilians and injured at least 15 more, but there is no claim that he masterminded any coverup.

“I suspect we know far more about what happened than John Key was told,” said Hager.

Some of the conclusion jumpers commenting at The Standard have missed that bit.

Hit and Run is an important book. Whether you admire or viscerally loathe its authors is immaterial to the evidence it documents.

Not all of the allegations are new, but the depth of research and detail are compelling.

Any journalism that heavily depends on unnamed sources should, of course, be subject to scrutiny, even if, as here, they are numerous and corroborated.

Critically, many of the sources would be willing to speak to an appropriate, independent investigation, says Stephenson.

For their sake, for the sake of the NZ Defence Force, whether to censure or vindicate, for the sake of the government, for the sake of respecting international law, for the sake of the dead, and in the public interest, that investigation needs to happen.

Not to do so for fear of creating difficulty for our military bosses or politicians or, even, the Americans, would be wrong.

“We’re not going to be rushed into an inquiry,” was an early response from the prime minister, and that is fair enough, but the case is now urgent and overwhelming.

I prefer time is spent doing things properly rather than jumping to the demands of journalists and activists.

Peter Dunne joins Labour, Greens and NZ First in asking for an inquiry.

Afghanistan Inquiry Now Inevitable – Dunne

UnitedFuture leader Hon Peter Dunne says an inquiry into allegations New Zealand SAS forces were involved in an incident that led to civilian deaths in Afghanistan now seems inevitable.

“In the wake of the comments in the Hagar book ‘Hit and Run’ there has been a rising fog of confusion, about what may or may not have happened.

“Recollections now seem to vary sharply, and I think it is inevitable some form of inquiry will be necessary to clarify and resolve these.

“New Zealanders are rightly proud of the reputation of our SAS and Armed Forces generally, and do not wish to see that diminished, so they deserve open reassurance that our forces have not behaved inappropriately.

“The current saga of claim and counter-claim will not provide that, therefore some form of independent inquiry is appropriate,” Mr Dunne says.

Some meaningful response from the Government seems inevitable, bit according to Legal Beagle Graeme Edgeler it should be an investigation instead. It’s worth reading his whole detailed post – A war crimes inquiry; or why Nicky Hager is wrong.

He concludes:

There is nothing to stop the Government starting an inquiry. There will be some aspects of what has happened that will be able to inquired into without risking prejudice to a Police investigation, but, as is generally the case with coronial inquests, we will need to recognise that not every question of importance can be answered while questions of whether there will be criminal charges remain unanswered.

In New Zealand, such investigations are a matter for the Police, and decisions over whether to prosecute (in the High Court) are ultimately for the Solicitor-General or Crown Prosecutors. Alternatively, allegations against soldiers may be a matter for the Military Police, leading the possibility of trial at a Court Martial. Neither will have much experience investigating war crimes. In the circumstances, I think the Police are better placed in the case.

There are sometimes reasons to prefer a Court Martial. For example, if the result of the investigation is that there is insufficient evidence to file war crimes charges, but that charges under the Armed Forces Discipline Act for failure to comply with the rules of engagement could be laid against some involved, this could only be done at a Court Martial. However, that is not possible here. There is a time limit for such charges to be brought to Court Martial, and it has well passed. A Police investigation would likely involve assistance from Military Police, and Crown Lawyers in any event.

Nicky Hager and Jon Stephenson have authored a book alleging war crimes; they’re not necessarily certain who, but the describe events that could amount to war crimes committed by New Zealanders. This has consequences.

When confronted with allegations of war crimes, New Zealand is obliged not just to find out what happened, but to investigate, and if appropriate, prosecute. But it would be wrong to pursue an inquiry that may prejudice the rights of those now under suspicion of committing war crimes. Commissions of inquiry do not investigate crimes. This is the job of the Police.

Where Police fail to investigate an alleged war crime, New Zealand has agreed, with the approval of Parliament, that the Prosecutor of the International Criminal Court can step in instead. We should not let that happen.